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Archived updates for Friday, December 30, 2005

A Template for Non-Precedential Appellate Opinions

With non-precedential opinions on their way out at the Court of Appeals for the Federal Circuit, Professor Hal Wegner suggests that the per curiam decision in In re Huber (Fed. Cir. December 20, 2005) represents a good model for a substitute for non-precedential and Rule 36 affirmances. Here's what he would do to make it even better:
First, there should be a nomination of the counsel for the parties.
Without consideration of the merits of the Huber case itself (which is
impossible to glean from the opinion, alone), there are too many litigants
before the court who take frivolous positions, yet maintain an apparently good
track record because their names do not appear on the Westlaw and Lexis
databases. Nomination of counsel ends anonymity and provides the public
consumers – the general counsel of corporations and individual inventors as well
– more transparency to see who’s doing a good job – and who’s not.

Second, where there is an affirmance of an opinion below, it is useful to
know what that opinion says. This is particularly true of the “black hole”
of PTO affirmances where it would be of great benefit to both litigators at the
Federal Circuit and – particularly – PTO prosecutors to get a better glimpse
into the largely shrouded world of ex parte case law at the Board. Here,
the Solicitor has it within his power to post all Board decisions on the PTO
website at the time of a Notice of Appeal to the court either on his own or
through a simple rule-making change.
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Anonymous Anonymous said...

It is misleading to say that non-precedential appellate opinions "are on [their] way out." The change in the rule only disallows prohibition of citation to non-precedential opinions and not the actual practice of using non-precedential opinions.

P.S. Cases are "per [curiam]" if the opinion is decided by the court as whole.

December 29, 2005 2:29 PM  
Anonymous Anonymous said...

Thanks for the comment, and my aplogies for the poor grammar (sp?) and spelling. It will be interesting to see how citation to any such non-precedential opinions are handled. I usually save the spell-checking for the I/P Updates Weekly newsletter on Monday-mornings, but this time I would look foolish if I waited.

December 29, 2005 3:24 PM  
Anonymous Anonymous said...

"Wegner, Harold C." wrote:
Subject: "Onward to Jan. 1, 2007: The end of the Non-Precedential Opinion and the 'Huber' model" - An Addendum
Date: Fri, 30 Dec 2005 09:21:36 -0500
From: "Wegner, Harold C."

Yesterday, a report was issued (as repeated below) on nonprecedential opinions in the context of the Huber case, which has generated some comment.

The following points should be noted in response to specific points raised by colleagues responsive to yesterday’s note:

First, it is correct that the change in practice concerning non-precedential opinions is not final and only a recommendation of the Judicial Conference. Yet, as pointed out in the attached "Black Hole" paper at p.1, the role of the Chief Justice and his track record make the change inevitable .

Second, the change does not require the Federal Circuit to abandon its policy of nominating opinions as nonprecedential. Indeed, this is a matter that is expected to be considered as one of the main topics at the Judicial Conference that the Court has announced for Washington, D.C., for May 19, 2006. See the the first posted "NOTICE" at

Third, even if the Federal Circuit does not follow the lead of the D.C. Circuit in its earlier move to change its practice – led by then-D.C. Circuit Judge (now Chief Justice) John Roberts – the court must permit citation of all of its opinions. What worth it gives to such citations is within the discretion of the Court.

Fourth, a defender of the PTO’s "black hole" practice has suggested that current PTO procedures now provide adequate means to search for Board opinions at the court through Google, Yahoo and PACER; this is answered in the "Black Hole" paper at page 27 and particularly accompanying notes 67-69.

A full copy of the "Black Hole" paper is attached. It is largely unchanged from its original September 22, 2005, iteration, other than at page 1 and the full paragraph at page 27 including accompanying new notes 67-69.



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